This is an appeal from a final judgment following a jury trial
in a products liability case. The plaintiff, Edelmiro Espinoza
("Espinoza"), alleged that he was shocked by an electric pet
deterrent device ("the device") while he was installing cable
at the home of the defendants, Manuel and Cecilia Triana.
Espinoza sued the Trianas, and later added the device's
manufacturer, Fi-Shock, Inc. ("Fi-Shock"), as a party defendant.
The jury found the Trianas to be one-hundred percent (100%) liable
for Espinoza's injuries, and also found no liability on the
part of Fi-Shock. Both Espinoza and the Trianas appeal
claiming that the trial court abused its discretion in
declining to give a jury instruction and special interrogatory,
requested by Espinoza, on whether Fi-Shock had a duty
to Espinoza, an unknown third party, to warn the Trianas
of the device's supposed dangers. Because Espinoza
failed to plead that Fi-Shock owed him a duty to warn
the Trianas, and because we find that this issue was not
tried by the implied consent of the parties, we
affirm.1

A day or two before the accident, the Trianas hired Espinoza to
reinstall cable television in their family home. Espinoza spoke
with Mr. Triana about the job and inspected the premises. At
that time, there was no pet deterrent device installed in the
Trianas' home. Shortly thereafter the Trianas purchased a Fido-Shock
pet deterrent device, which delivers an electrical signal intended
to mildly shock small animals, presumably for training purposes,
in order to stop their dog from tearing the screen door of the
patio enclosure. This screen door was located a few feet from
a swimming pool.

Mr. Triana installed the device across the bottom of the patio
screen door, with wire running to the transformer, and then out
through a metal rod on the patio floor, positioning the wire
approximately a foot above the ground. Any person, entering through
the patio door, would have to step over the activated wire to
avoid being shocked. Triana activated the device before Espinoza
came to install the cable. Triana did not tell Espinoza that
he had installed and activated the device, or that there was
an electrified wire strung across the patio door. Moreover, Triana
did not post any type of sign warning about the device or wire,
even though such sign could be ordered from Fi-Shock for one
dollar ($1.00).

Espinoza came to the Trianas' house, where he dug approximately
a one-hundred (100) foot trench, in which the cable would be
placed. After digging the trench for several hours, Espinoza
went to speak to Mr. Triana, who he thought was on the patio.
Upon opening the handle of the patio screen door, Espinoza started
to walk through the doorway, when his bare shin came into contact
with the energized wire that was strung across the doorway. Espinoza's
bare feet, shins and wet hands produced resistance to the flow
of electricity, causing a surge of current through his body,
which threw him to the ground. Espinoza managed to get up, and
go into the Trianas' garage, where he was later found by Mr.
Triana lying on his back moaning and shaking. Thereafter, this
lawsuit ensued.

Espinoza's suit was originally filed only against the Trianas
as the owner of the property on which he was injured. The Trianas
then filed a third-party complaint against Fi-Shock for contribution and
indemnification.2
Thereafter, Espinoza filed an amended complaint adding Fi-Shock
as a defendant, alleging that Fi-Shock was negligent in the design,
manufacture and distribution of the device. Neither of Espinoza's
complaints directly or implicitly alleged that Fi-Shock had failed
to provide the Trianas with adequate warnings.

Fi-Shock moved for summary judgment against Espinoza on two occasions.
The first motion for summary judgment was denied. A week before
trial, Espinoza conceded in his response to Fi-Shock's second
motion for summary judgment, that there was no evidence to support
his claim for negligent manufacture, and that there was "limited
evidence" to support his claim for negligent design. However,
Espinoza argued for the first time, that Fi-Shock breached a
duty to him by failing to adequately warn the Trianas that the
device could injure some people.

The trial court bifurcated the trial into liability and damages
phases. During the trial on liability, over Fi-Shock's objection,
Espinoza's expert was permitted to testify about the adequacy
of the warnings contained in the device's instruction
manual.3
This expert testified that Fi-Shock's instructions were insufficient
because there were no warnings on the box or in the instruction
manual describing the risk of shock, or advising that the electricity
produced by the device could possibly injure
people.4
Espinoza's expert did admit, however, that the device itself
was not defective either in design or manufacture. Thus, following
Espinoza's expert's testimony, the sole issue regarding Fi-Shock's
liability to Espinoza became, over objection, whether Fi-Shock's
instruction manual contained adequate
warnings.5

Conversely, Fi-Shock's expert testified that the device was safe.
In fact, prior to this incident, Fi-Shock had never received
notice that any person, or small animal, had ever been injured
by the device. The expert also testified that the device was
approved by Underwriters Laboratories ("UL"), an independent
product testing organization, and deemed safe. Both the device,
and the warnings in the instruction manual, complied with UL's
standards. Fi-Shock's expert testified that if Espinoza was injured
by the device, it was not due to a lack of warnings.
Rather, the expert testified that contrary to Fi-Shock's
specific instructions, Espinoza's injury occurred because
Triana had installed the device on his
patio.6

At the close of Espinoza's case, Fi-Shock moved for a directed
verdict on grounds, among others, that Espinoza had never pled
a claim against Fi-Shock for inadequate warnings, and since that
was the sole basis of Espinoza's claim against Fi-Shock, that
it was entitled to a directed verdict. The trial court reserved
ruling on the motion. After the close of all the evidence, Fi-Shock
again moved for a directed verdict, on the same grounds, which
the trial judge again reserved ruling on, noting that the jury
verdict might render a ruling moot.

During the charge conference, Espinoza requested a special jury
instruction, purportedly based on
Hayes v. Spartan Chemical Company,
622 So. 2d 1352 (Fla. 2d DCA 1993),
that a manufacturer has a duty to third parties, to
adequately warn homeowners of the dangers of a product
so that the homeowners can protect third parties who
come onto their property. Espinoza also requested that the
following special interrogatory be placed on the verdict form:
"Did Defendant, Fi-Shock, Inc., have a duty to warn Defendants,
Triana, that [the device] could be dangerous to people?" Fi-Shock
again objected, claiming that both the instruction and interrogatory
were inappropriate in this case. The trial court agreed, and
declined to give the instruction or the interrogatory. The Trianas
never objected to the trial court's failure to give the instruction
and/or interrogatory.

The jury found that the device caused Espinoza's accident; that
the Trianas had a duty to warn Espinoza that the device had been
installed on their property; that the Trianas failed to warn
Espinoza; that the Trianas' failure to warn Espinoza was the
legal cause of the accident; and that Fi-Shock had prior notice
that the device could be dangerous to people. The jury found
in favor of Espinoza and against the Trianas. The jury also found
that Fi-Shock owed no duty to Espinoza. This appeal followed.

On this appeal, both Espinoza and the Trianas claim that the trial
court's refusal to give Espinoza's requested jury instruction
and interrogatory, regarding whether Fi-Shock owed a duty to Espinoza
to warn the Trianas of the dangers of the device, constituted reversible
error.7
We disagree.

The decision on whether to give a particular jury instruction,
or include a special interrogatory on a verdict form, is within
the trial court's discretion, and absent "prejudicial error,"
such decisions should not be disturbed on
appeal.8SeeGoldschmidt v. Holman,
571 So. 2d 422, 425 (Fla. 1990)
(stating that "[d]ecisions regarding jury instructions are within
the sound discretion of the trial court and should not be disturbed
on appeal absent prejudicial error.").
See alsoKranis v. Zahler,
505 So. 2d 14 (Fla. 3d DCA 1987)
(reversible error analysis used by appellate court to
analyze trial court's use of special interrogatory verdict);
D'La Rosa v. Rodriguez,
460 So. 2d 567 (Fla. 3d DCA 1984)
(same).

Because Espinoza failed to plead the issue of adequate warnings,
we find that the trial court acted fully within its discretion
in denying an interrogatory or jury instruction concerning Fi-Shock's
failure to adequately warn. The law is clear that litigants
at the outset of a suit must be compelled to state their
pleadings with sufficient particularity for a defense to be prepared.
Our growing, complex society and diminishing resources mandate
the requirement that litigants present all claims to the extent
possible, at one time and one time only.

Espinoza claims on this appeal that the issue of the adequacy
of Fi-Shock's warning was tried by the implied consent of the
parties. Espinoza is wrong. The record affirmatively shows that
when Espinoza first raised this issue one week prior to trial,
at the second summary judgment hearing, Fi-Shock specifically
objected. In addition, Fi-Shock objected to Espinoza's opening
statement when the adequacy of its warnings was raised; moved
in limine to exclude evidence regarding the "inadequacy" of its
warnings; and objected to the testimony of Espinoza's expert
regarding the adequacy of the
warnings.9
Despite these objections, Espinoza claims that Fi-Shock's failure
to object to Mr. Triana's testimony, regarding the instruction
manual and the warnings contained therein, constituted implied
consent by Fi-Shock to try Espinoza's failure to adequately warn
claim. Triana's testimony, however, clearly addressed the issue
of his own negligence, for which he was being tried, and as such
Fi-Shock's failure to object cannot be construed as its implicit
consent to the trial of an unpled theory.
SeeRaimi v. Furlong,
702 So. 2d 1273, 1285 (Fla. 3d DCA 1997)
(holding that "failure to object cannot be construed as
implicit consent to try an unpled theory when the
evidence introduced is relevant to other issues
properly being tried."),
citing
Bilow v. Benoit,
519 So. 2d 114, 116 (Fla. 1st DCA 1988);
Wassil v. Gilmour,
465 So. 2d 566, 569 (Fla. 3d DCA 1985).
See alsoNichols v. Michael D. Eicholtz, Enterp.,
750 So. 2d 719, 720 (Fla. 5th DCA 2000)
(an unpled theory may not be tried by implied consent
when the evidence presented at trial is relevant to
other issues which are properly being tried).

Finally, Espinoza argues that the trial court denied his proposed
jury instruction and interrogatory not on procedural grounds—the
failure to plead the failure to adequately warn claim—but rather
on the substantive grounds that Florida law imposed a duty on
Fi-Shock to warn the Trianas for the purpose of protecting Espinoza.
Thus, Espinoza argues that the trial court's refusal to give
the jury instruction and interrogatory cannot be defended on
procedural grounds. Despite the reasoning of a trial court, a
correct ruling will be upheld if there is a legal theory to support
it.
SeeDade County Sch. Bd. v. Radio Station WQBA,
731 So. 2d 638, 644 (Fla. 1999)
(stating that "even though a trial court's ruling is
based on improper reasoning, the ruling will be upheld
if there is any theory or principle of law in the record which
would support the ruling).
See alsoRancho Santa Fe, Inc. v. Miami-Dade County,
709 So. 2d 1388 (Fla. 3d DCA 1998)
(denying certiorari where trial court applied
the wrong standard of review but reached the correct result)
(citing
In Re Estate of Yohn,
238 So. 2d 290, 295 (Fla. 1970)).
Because we find that the trial court correctly declined
to give Espinoza's requested jury instruction
and interrogatory, and because there has been no showing that
the trial court abused its discretion, we affirm.

2.
The third-party complaint was actually brought against Fi-Shock,
Inc. as the manufacturer of the device, and Builders Square,
Inc. as the store that had sold them the device. Builders Square's
defense was provided by Fi-Shock.
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3.
Following opening statements, Fi-Shock moved in limine to preclude
the introduction of any testimony that Fi-Shock inadequately warned
Triana because it failed to provide him with a warning sign regarding
the electric fence.
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4.
The front of the device's box said "Warning"-"delivers a mild
shock to deter mischievous small animals"-"no danger of injury."
There was no warning on the box that the device could cause injury
to people. The instructions did tell buyers not to step over
the electric wire when it was energized, but failed to inform
consumers of the consequences of stepping over the device.
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6.
The device's instruction manual specifically warned, in capital
letters, to NEVER INSTALL AN ELECTRIC FENCE NEAR A SWIMMING POOL,
POND OR ANY WATER WHERE A SUBMERGED ANIMAL MIGHT COME INTO CONTACT
WITH THE CHARGED WIRE.
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7.
As previously discussed, the Trianas never objected to the trial
court's omission of the requested interrogatory and jury instruction.
Thus, the Trianas failed to preserve this issue for appeal and
therefore we affirm the final judgment as to the Trianas and
will only address Espinoza's arguments on appeal.
See footnote 1,
supra.
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8.
"Prejudicial error requiring reversal of judgment or new trial
occurs only where the error complained of has resulted in a miscarriage
of justice. A miscarriage of justice arises where instructions
are reasonably calculated to confuse or mislead the jury."
Rucker v. Garlock, Inc.,
672 So. 2d 100, 101 (Fla. 3d DCA 1996).
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9.
The record does not clearly illustrate why this evidence was
admitted at trial, and we are confounded as to why the trial
court would admit, over objection, evidence relating to a cause
of action that was never pled by Espinoza.
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